The First Amendment SLAPPS Back, 0118 ALBJ, 87 J. Kan. Bar Assn 1, 30 (2018)

Author:Eric Weslander, J.
Position::87 J. Kan. Bar Assn 1, 30 (2018)
 
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The First Amendment SLAPPS Back

87 J. Kan. Bar Assn 1, 30 (2018)

Kansas Bar Journal

January, 2018

An Overview of the Free-Speech Protections of Kansas' New Anti-SLAPP Statute

Eric Weslander, J.

Introduction

One not need look far in today’s world for prominent examples of threats of dubious legal action against journalists, in retaliation for unflattering reports on the rich and powerful. Examples include an attorney for movie producer Harvey Weinstein threatening to sue the New York Times over reports of sexual-harassment complaints,1 or an attorney for unsuccessful Alabama U.S. Senate candidate Roy Moore writing that a local news organization should be liable on grounds it “intentionally refused to advance the truth” regarding the sexual-misconduct allegations against Moore, and should be liable for “oppression, fraud, wanntonness, and/or malice.”2 A Kansas statute enacted in 2016 that has garnered relatively little public attention, K.S.A. 60-5320, the “Public speech protection act,” represents the latest in step in a nationwide battle to fight meritless lawsuits that chill free speech, known as SLAPPs, or “strategic lawsuits against public participation.” Familiarity with this statute— which provides for mandatory attorneys’ fees in the event of a successful anti-SLAPP motion — is a must for attorneys litigating civil matters in Kansas courts. In essence, the statute allows a defendant to bring a special motion to strike a claim early in litigation, if that claim is “based on, relates to or is in response to a party’s exercise of the right of free speech, right to petition, or right of association,” as extensively defined in the statute, shifting the burden to the plaintiff to show that it has a prima facie case. K.S.A. 60-5320(d) Notably, the statute requires the court to award a successful anti-SLAPP movant its costs and attorneys’ fees, and to order “such additional relief, including sanctions upon the responding party and its attorneys and law firms, as the court determines necessary to deter repetition of the conduct by others similarly situated” K.S.A. 60-5320(g) (emphasis added). By contrast, if the party bringing the claim survives the anti-SLAPP motion, the court may award that party its costs and fees only if the court finds "the motion to strike is frivolous or solely intended to cause delay." Id. Te message to litigants is clear: be very careful before you bring a suit that seeks to punish the exercise of free speech.

Background

Te term “SLAPP,” coined by two law professors in the 1980s,3 refers to suits designed to chill free speech and impose costs on the speaker. Te most common causes of action associated with SLAPP suits are libel and defamation; other common causes of action for SLAPPs include interference with contract or business, antitrust violation, and unfair competition.4 As stated by the Maine Supreme Court in a decision involving that state’s anti-SLAPP act, the “classic anti-SLAPP case” is one in which “citizens who publicly oppose development projects are sued by companies or other citizens.”5 The effort to pass these statutes nationwide, in states including Kansas, goes to the very heart of our democracy: the free exchange of ideas and the ability to speak out about matters of public importance, even if the content of the speech is inconvenient or unflattering to someone else. The United States Supreme Court has recognized that this country’s origins instilled a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” as embodied in the First Amendment to the U.S. Constitution.6 Te Bill of Rights of the Kansas Constitution further provides at § 11 that “Te Liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights.” (emphasis added).

Today, as an extension of this legacy, public officials and public figures generally cannot win a defamation case unless they show that the statement was made with “actual malice,” i.e., with knowledge of its falsity or reckless disregard for the truth. The U.S. Supreme Court first adopted this First Amendment standard in its landmark 1964 decision in New York Times v. Sullivan, a case in which the Montgomery, Alabama police commissioner sued the New York Times for publishing a political advertisement about police handling of civil-rights protesters including Dr. Martin Luther King, Jr. Although the Sullivan ruling effectively “constitutionalized” the law of defamation, the “actual malice” standard relating to public officials had long been the law in Kansas and other states at the time of the Sullivan decision, and Sullivan cites the Kansas decision of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908), for the proposition that “It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages.”

As powerful as the legal protections for free speech are, however, a viable legal defense takes time and money—and often too much of both. In testimony supporting Kansas’ anti-SLAPP statute, the late Rep. Jan Pauls stated, “Our court system is increasingly seen not as a means for swift justice, but as a game, used by some, of drawn out punishment for those without deep pockets.”7 Potential costs associated with SLAPP suits include not only out-of-pocket expenses on behalf of the litigants, but also time, distraction, anxiety, and lost work time. On a societal level, proponents of anti-SLAPP acts argue, meritless SLAPP suits create a drain on judicial resources and potentially chill the exercise of free speech.

To well-known Internet-law scholar Eric Goldman, anti-SLAPP statutes exist in part to protect “negative truthful information,” such as critical consumer reviews, which he calls the “highly endangered species of the information ecosystem.” This type of information is endangered, he says, “because it’s goring someone’s ox, and the ox is going to gore back.”8 Although the concept of SLAPP laws originally arose in the context of protecting against suits that seek to suppress citizens’ rights to petition the government, in today’s world, Goldman said “I think about SLAPPS as covering any lawsuit that’s designed to suppress socially important speech [such as consumer reviews or investigative journalism]… there’s a wide range of other kinds of socially important content that we want to encourage and foster.”9 As discussed further below, the first Kansas cases testing the anti-SLAPP statute are now working their way through the courts. Some high-profile cases from other jurisdictions show the wide-ranging scenarios that could set the stage for an anti-SLAPP motion to strike, including the following: • A coal-energy executive and his affiliated companies suing HBO personality John Oliver over a satirical report that likened him to the comic movie character “Dr. Evil.”10 (This suit was fled in state court in West Virginia, which has no anti-SLAPP statute; nevertheless, the suit has been widely analyzed under the rubric of SLAPP-type suits).

• A weekly newspaper publisher suing the publisher of competing publication, alleging defamation based on competing publisher’s non-actionable opinions.[11]

• A forest-products company suing the environmental group Greenpeace International, along with various affiliate groups, executives and board members, alleging violation of RICO statutes and other causes of action over allegedly “false and misleading” information disseminated by the group.12

• A plaintiff suing the founder of the website "Tech-Dirt.com" for $15 million over a series of detailed, factually supported articles challenging the plaintiff's assertion that he invented email.13

• The owner of the Washington Redskins suing the Washington City Paper over factually supported articles criticizing him.14

At last count, approximately 32 states and the District of Columbia had anti-SLAPP statutes, although they vary greatly in the type of activities they encompass and the procedures involved in bringing a motion. Tis variation—with the attendant potential for forum-shopping—has prompted advocates to seek federal anti-SLAPP legislation, and has caused the Uniform Law Commission to convene a drafting committee for a potential Uniform Anti-SLAPP Act, to be convened in early 2018.15

The Public Participation Project, which tracks anti-SLAPP statutes and litigation nationwide, rates Kansas’ new statute (enacted July 1, 2016) as “good,” giving it a grade of “B.” As originally proposed, the Kansas statute would have applied only to suits where the defendant’s conduct involved “public participation and petition.” Te scope of the statute was later broadened to encompass any claim that concerns...

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